August 29, 2006 | The Federal Election Commission rejected today a proposal that would have allowed labor unions, corporations and advocacy groups to broadcast ads close to an election that talk about issues but also identify candidates by name.

The 2002 Bipartisan Campaign Reform Act (BCRA) prohibited such ads but gave the FEC the ability to establish exemptions. The commission’s current rule bans interest groups from using unlimited and undisclosed funds to run issue ads naming federal candidates within 60 days of general elections and 30 days of primary elections. Within the blackout period, interest groups can run such ads but must pay for them using limited political contributions from donors they disclose.

Republican Commissioner Hans von Spakovsky’s proposal, rejected today in a 3-3 vote along party lines, was based on a February petition from the AFL-CIO, the U.S. Chamber of Commerce and three other organizations. The unusual coalition of interest groups said the FEC-imposed blackout on issue ads unfairly restricts their First Amendment rights to speak freely and petition the government. One hundred and eighty individuals and organizations on the right and left supported the petition.

The exemption from the broadcast blackout would have freed interest groups from “artificial and inappropriate restrictions on…engaging in policy communications,” Laurence E. Gold, associate general counsel for the AFL-CIO, told CapitalEye.

“[The restrictions] serve no legitimate public purpose, they criminalize speech and they interfere with the public’s ability to receive information,” Gold said.

Under von Spakovsky’s proposal, labor unions, corporations and other advocacy groups could have run television and radio ads that urge members of Congress to vote a certain way on a bill or that encourage the public to contact their elected representatives. The proposal restricted ads to mentioning only incumbents and prohibited critiques of the lawmakers’ qualifications for office. Ads could not refer to an upcoming election and would have to cite verbatim quotations from the lawmaker discussing the issue.

Ads that promoted, supported, attacked or opposed a candidate would not qualify for exemption from the blackout period. Democratic Commissioner Ellen Weintraub, who voted against the proposal, said the definition of such ad content needed to be clearer.

“Without a specific definition, I think we’re left with little more than an ‘I know it when I see it’ test,” Weintraub said. She added that associating candidates with an issue could convey their position and, thus, affect the support they receive in an election.

Government watchdog groups made a similar argument. “The von Spakovsky proposal itself would have opened a major campaign finance loophole in BCRA and allowed corporations and labor unions again to use their organizational funds to finance campaign ads in the guise of ‘issue ads,’ ” Democracy 21 President Fred Wertheimer said in a statement after the FEC meeting.

American Cancer Society Associate Corporate Counsel Angela Goehl, whose organization supported the original petition, told CapitalEye the exemption wouldn’t lead to such abuse. “When you’re talking about these types of general issues ads, you’re not aiming them at an officeholder as a candidate. You’re trying to urge them to act,” Goehl said.

In May, the American Cancer Society ran ads asking people to encourage their senators to oppose a bill that would eliminate health insurance coverage for mammograms. If the legislation had come before Congress a month before the November elections, however, the organization would have been forced to run less effective ads, Goehl said.

The proposed exemption to the ad blackout was meant to be temporary, lasting only until 2007, at which time the FEC would assess whether to make it permanent. Although the petition was filed six months ago, commissioners were divided over how to proceed. The FEC needed to approve any exemption by today’s meeting in order for it to apply to the November 2006 elections. Commissioners Weintraub and Democrat Steven Walther said the decision would be too rushed and urged the panel to wait until the courts provided some direction. “If we’re going to do something today, we’d be premature because we’d be shutting out the debate we’re saying is so important,” Walther said.

Von Spakovsky, however, told the commission that waiting would only encourage corruption in the system. “I don’t think restricting genuine issue ads in any way discourages the corruption of the political process. In fact, I think it’s the other way around,” he said. “When you restrict the ability of citizens to participate in the political process, that’s when you get corruption.”

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